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JOSEPH F. LEWIS v. COMMONWEALTH PENNSYLVANIA (03/03/83)

decided: March 3, 1983.

JOSEPH F. LEWIS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



Appeal from the Order of the Pennsylvania Board of Probation and Parole in case of Joseph F. Lewis v. Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole.

COUNSEL

Timothy P. Wile, Assistant Public Defender, for petitioner.

Arthur R. Thomas, Assistant Chief Counsel, with him Robert A. Greevy, Chief Counsel, Jay C. Waldman, General Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 72 Pa. Commw. Page 399]

Joseph Lewis (Petitioner) has filed a petition for review with this Court in its appellate jurisdiction.*fn1 The petition avers that the Board of Probation and Parole (Board) failed to hold within 120 days a rehearing it had granted him pursuant to his application for administrative relief. Presently before us for disposition is Petitioner's motion for summary relief, filed pursuant to Pa. R.A.P. 1532(b),*fn2 averring that there is no genuine issue of fact and that Petitioner is entitled to judgment as a matter of law.

Factually, the Board held a timely violation and revocation hearing on September 18, 1980, at which

[ 72 Pa. Commw. Page 400]

    hearing Petitioner waived his right to representation by counsel.*fn3 On January 23, 1981, Petitioner requested a new violation/revocation hearing because he was not represented by counsel at the September 18, 1980 hearing. The Board granted the request on February 11, 1981 and fixed the date for the rehearing for August 5, 1981. Petitioner did not appeal from that order. Due to no fault of Petitioner, the hearing was not held until August 31, 1981.

In response to the minimum due process requirements for parole violation and revocation hearings as set forth in Morrissey v. Brewer, 408 U.S. 471 (1972), the Board adopted regulations providing that parole violation hearings must be held not later than 120 days of a preliminary hearing, 37 Pa. Code § 71.2(11), and that parole revocation hearings, where the violation charged is the conviction for a new offense,*fn4 shall be held within 120 days from the date the Board receives official notice of conviction. 37 Pa. Code § 71.4(2). A parolee may apply for administrative review and relief within 30 days of any Board order which he considers to be erroneous. 37 Pa. Code § 71.5(h).

Notwithstanding the fact that Petitioner waived his right to legal representation at the September 18, 1980 hearing and notwithstanding the fact that his application for administrative relief was untimely filed, the Board, as we have noted, granted a rehearing. Petitioner admits that there is no specific Board regulation pertaining to time restrictions within which rehearings shall be held but he contends that such rehearings must be held within 120 days of the

[ 72 Pa. Commw. Page 401]

    date when administrative relief was granted. The date of rehearing in the instant case, of ...


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